2012 YLR 2335 (PLP)

AMIN-UD-DIN KHAN, J.--Through this civil revision, the petitioner has challenged the judgment and decree passed by the learned Additional District Judge, Bahawalnagar dated 14-3-1997; whereby appeal_ filed by the respondents was accepted and judgment and decree passed by the learned Civil Judge, Bahawalnagar dated 12-1-1996 was set aside, resulting the dismissal of the suit filed by the petitioner.

2. The brief facts as leading to this civil revision are that the petitioner-plaintiff filed a suit for declaration on 12-11-1992 challenging therein the validity of mutation of sale No.400 attested on 2-2-1969. The respondents-defendants contested the suit by filing written statement and also raised many preliminary objections. Learned trial Court after framing of issues invited the parties to produce their oral as well as documentary evidence, which they done the needful. The learned trial Court decreed the suit vide its judgment and decree dated 12-3-1996. The respondents-defendants filed an appeal before the 'first appellate court which was accepted on 14-3-1997 resulting therein the dismissal of suit filed by the petitioner.

3. The learned counsel for the petitioner argued that the learned. first appellate court has violated the law and has not recorded the findings issue-wise; that at the time of attestation of the impugned mutation the plaintiff-petitioner was minor; that Exh.'P-1 is school' leaving certificate which was produced before the trial Court in documentary evidence and according to which the age of petitioner plaintiff is 15 years at the time of attestation of impugned mutation. Further states that on the basis of mutation no rights' in the immovable property are transferred. The learned first appellate court has misread the evidence available on the file in shape of Exh.D-1and Exh. D-4. He prays that the judgment and decree passed by the first appellate court be set aside.

4. None has entered appearance on behalf of the respondents. Therefore, they are proceeded against ex parte.

5. I have heard the ex parte arguments and perused the record with the able assistance of learned counsel for the petitioner.

6. The contention of learned counsel for the petitioner is that Exh.P-1 has been misread by the first appellate court. I have noticed that Exh.P-1 is not per se admissible. This document can be proved through the cogent evidence. Furthermore, P.W.3 Muhammad Islam Headmaster who came to prove Exh.P-1, in his cross-examination many ambiguities came on the record with regard to the Register from which the certificate was issued. Further the contention of learned counsel for the petitioner that the first appellate court was also bound to record its findings on each and every issue separately. It is not tenable under the law because the discussion of every issue is necessary but it is not necessary for the first appellate court to record the findings on each and every issue separately, like the trial Court when the detailed findings of trial Court on each issue are available on record. It is not denied that previously a suit on the basis of same cause of action was filed by the plaintiff in the year 1970 Which was compromised, in consideration of Rs'.15000 on 18-3-1970. In the compromising application the plaintiff stated that he received an amount of Rs.9000 and he is receiving the rest of agreed money 9f Rs.6000 at the time of recording his compromising statement before the court. On the said date he also stated in his statement that his suit be dismissed and he has handed over the possession of suit-land to the defendants-respondents. All the proceedings in the said suit were produced by the defendants as Exh.D-1 to Exh.D-4 and proof of payment was also produced before the court as Exh.D-6 and Exh.D-7.

7. It is also important to mention here that the suit property was received by the plaintiff in inheritance of his deceased brother Gulzar Shah. The copy of Rappat Roznamcha Waqiati dated 27-1-1969 has been produced as Exh.D-13 which shows that for the entry of mutation of inheritance, statement of petitioner-plaintiff was recorded and for the impugned mutation also his statement was recorded through the same Rappat. It is not denied that at the time of attestation of the impugned mutation the petitioner-plaintiff was a grown up boy and he has showed him to be a major. It is not the case of petitioner that he was of tender age. Further I have observed that the statement of Patwari who recorded the Rappat for attestation of mutation, is on record through which he proved the case and Exh.P-11 medical examination certificate has been produced by the plaintiff himself according to which the Doctor opined that on 27-1-1969 the age of plaintiff was 18 years approximate. In this view of the matter, the learned first appellate court has discussed in detail the full factual as well as legal position and came to the conclusion that plaintiff was not proved to be the minor at the time of attestation of impugned mutation. The contention of learned counsel for the petitioner that a mutation does not create or confer a right in favour of the person claiming under any mutation. No doubt just attestation of mutation does not create title but in this case the defendant-vendee fully proved the factum of sale. They produced Patwari as well as the Revenue Officer who attested the mutation and also produced copy of Rappat Roznamcha Waqiati. When this evidence has been produced, the factum of sale and attestation of mutation is proved, then this creates and confer a right in favour of vendee always. Furthermore, there is estoppel against the petitioner because he filed a suit in the year 1970 and compromised. The age certificate Exh.P-11 negates the claim of the plaintiff-petitioner. Further that in existence of a previous decree which is Exh.D-1, fresh suit was barred under section 12(2) of the C.P.C. I have also thoroughly examined the record as well as judgment passed by the first appellate court. I have not seen any illegality infirmity or jurisdictional defect. There is no misreading or non-reading of evidence on the part of the first appellate court.

8. In the light of what has been discussed above, the learned counsel for the petitioner failed to show any illegality or jurisdictional defect in the impugned judgment passed by the first appellate court. Accordingly, the instant civil revision being devoid of any substance is dismissed with costs. KMZ/T-10/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.